The opinion
J-A21016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: M.K. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.K.
No. 504 EDA 2013
Appeal from the Dispositional Order December 18, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-JV-0003810-2012
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED OCTOBER 01, 2014
M.K. appeals from the dispositional order, entered on December 18,
2012, in the Family Division, Juvenile Branch, of the Court of Common Pleas
of Philadelphia County, after he was adjudicated delinquent of possession
with intent to deliver a controlled substance (PWID), and possession of a
controlled substance.1 The court ordered M.K. to remain at Mid Atlantic
Western PA Child Care. M.K. challenges (1) the denial of his suppression
motion, and (2) the sufficiency of the evidence. Based upon the following,
we affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30), (a)(16), respectively.
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The juvenile court has aptly summarized the evidence, which was
presented at the suppression hearing, as follows:
During the course of the hearing held on a Motion to
Suppress on [December] 18, 2012, this Court heard testimony
from one witness, Philadelphia Police Officer Ernest Brown.
Officer Ernest Brown, Badge Number 926, testified that he
was assigned to the Narcotics Field Unit North on August 1, 2012
and that he and his partner, Officer Sumpter came in contact
with [M.K.] on that date. Officer Brown identified [M.K.] in court.
The Narcotics Unit was investigating potential narcotics
sales at 3269 Byberry Road in Philadelphia on July 31, 2012 and
witnessed suspected sales by several males. On August 1, 2012,
the Narcotics Unit obtained a search warrant for that address.
The search warrant identified several items to be searched for
and seized, including narcotics, paraphernalia, and weapons.
While the Philadelphia Police officers were executing a valid
search warrant, [M.K.], who was not initially present in the
home, walked up on to the porch of the house. According to the
police report admitted by stipulation of the counsel, Officer
Sumpter observed a bulge in the right hand pocket of [M.K.].
The police officer then stopped [M.K.] and patted him down for
his own personal safety and the safety of his fellow officers. On
the porch, Officer Sumpter stopped and frisked [M.K.]. After
patting [M.K.] down, the officer recognized the bulge to be
narcotics and recovered sixteen (16) Ziploc bags, each
containing marijuana.
Juvenile Court Opinion, 9/25/2013, at 4–5 (record citations omitted).
After hearing argument on the motion to suppress, the juvenile court
denied the motion and the matter proceeded to an adjudicatory hearing,
where the Commonwealth incorporated the suppression testimony with
respect to all nonhearsay testimony from Officer Brown and stipulations from
the Philadelphia Police Department Arrest Report (“PARS”), and introduced
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property receipts and seizure analyses. See N.T., 12/18/2012, at 34–35.
Thereafter, the court adjudicated M.K. delinquent of PWID, possession, and
conspiracy,2 and ordered him to remain at Mid Atlantic Western PA Child
Care. Subsequently, in response to the post-dispositional motion filed by
M.K., the court vacated the adjudication of delinquency based upon
conspiracy only, and this appeal followed.3
The first issue raised by M.K. is a challenge to the denial of his
suppression motion. M.K. asserts police “frisked [him] without reasonable
suspicion that he was armed and dangerous where he was merely present as
a visitor during the execution of a search warrant, he had no involvement in
the drug activity under investigation, and police saw a bulge in his pocket
but did not observe him behaving in an unusual, suspicious, or furtive
manner.” M.K.’s Brief at 11. M.K. argues “[his] mere presence in the home
during the execution of the search warrant does not justify frisking him. Nor
does an innocuous bulge in his pocket establish a per se basis for suspecting
that he was armed and dangerous.” Id. at 14.
Our standard of review is well settled:
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2
18 Pa.C.S. § 903.
3
M.K. timely filed a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b), and, a petition for extension of time,
which was granted by the juvenile court. M.K. subsequently filed a
supplemental statement, following transcription of the notes of testimony.
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In addressing a challenge to a trial court’s denial of a
suppression motion, we are limited to determining whether the
factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Since the
Commonwealth prevailed in the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as it remains uncontradicted when
read in the context of the record as a whole. Where the record
supports the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error.
Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(citations omitted).
The facts set forth above, as found by the juvenile court, are
supported by the record, and therefore we turn to examine the court’s legal
conclusions. The juvenile court explained the rationale for its ruling as
follows:
It is well established that a police officer may briefly detain an
individual and conduct a pat-down search for weapons if the
officer[] has “reasonable articulable suspicion” that an individual
is armed and dangerous. Terry v Ohio, 392 U.S. [1], 88 S. Ct.
1868, 20 L.Ed. [2d] 889 (1968). In order to justify a protective
pat-down search or “frisk” for weapons, “the police officer must
be able to point to specific and articulable facts which, taken
together with rational inferences from those facts reasonable
warrant the intrusion.” 392 U.S. at 21.
In Terry, the Unites States Supreme Court emphasized that the
“sole justification for the frisk” is the protection of the officer and
others nearby, and it must be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs or other
hidden [instruments] for the assault of the police officer. Id. at
29. To determine whether the search in this case was
reasonable, the Court must evaluate the totality of the
circumstances and the need to balance the need for the search
against the degree of the intrusion it entails.
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Nothing in Terry can be understood to allow a generalized
“cursory search or patdown” or indeed, any search whatever for
anything but weapons. The “narrow scope” of the Terry
exception does not permit a frisk for weapons on less than a
reasonable suspicion or belief directed at the person to be
frisked, even though that person happens to be on the premises
when an authorized narcotics search is taking place. Ybarra v.
Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979).
In considering whether the Police Officer Sumpter possessed the
requisite suspicion to frisk [M.K.] for weapons, the Court found
that the police officer had no specific knowledge or information
that [M.K.] might have drugs on his person before he frisked
[M.K.] for weapons. The Police Officer Sumpter observed a
“bulge” and it was the “sole justification” for the frisk to protect
the police officers. The initial pat-down search of [M.K.] was
confined in a reasonable intrusion reasonably designed to
uncover guns, or other hidden objects, that could be used to
assault of the police officers who were in the process of
executing a search warrant at 3269 Byberry Road in
Philadelphia, PA.
Juvenile Court Opinion, supra, at 7-8.
For the following reasons, we find no error in this analysis.
It is well-established that a police officer may conduct a
brief investigatory stop of an individual if the officer
observes unusual conduct which leads him to reasonably
conclude that criminal activity may be afoot. Moreover, if
the officer has a reasonable suspicion, based on specific
and articulable facts, that the detained individual may be
armed and dangerous, the officer may then conduct a
frisk of the individual’s outer garments for weapons.
Since the sole justification for a Terry search is the
protection of the officer or others nearby, such a
protective search must be strictly limited to that which is
necessary for the discovery of weapons which might be
used to harm the officer or others nearby. Thus, the
purpose of this limited search is not to discover evidence,
but to allow the officer to pursue his investigation without
fear of violence.
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Scarborough, supra, 89 A.3d at 683 (citations omitted).
Furthermore,
[a]n overt threat by the suspect or clear showing of a weapon is
not required for a frisk. It is well-established that “[t]he officer
need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others
was in danger.”
Commonwealth v. Mack, 953 A.2d 587, (Pa. Super. 2008) (citations
omitted).
Here, M.K.’s arguments asserting his “mere presence” and “innocuous
bulge” are based upon the facts taken in isolation. We recognize “a police
officer must have a particularized, objective basis for a protective search; an
individual’s mere proximity to others engaged in criminal activity is
insufficient” to justify a protective search. Commonwealth v. Grahame, 7
A.3d 810, 817 (Pa. 2010) (finding search of appellant’s purse was
unreasonable when she was sitting in the living room during consent search
of a house where another person had sold illegal drugs ten minutes prior;
disapproving a “guns follow drugs” presumption in order to justify a
protective search for weapons”). However, the appropriate analysis requires
the suppression court to view the facts in the light of the totality of the
circumstances. See Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa.
Super. 2011), appeal denied, 25 A.3d 328 (Pa. 2011) (“In order to
determine whether the police had reasonable suspicion, the totality of the
circumstances — the whole picture — must be considered.”).
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The Commonwealth’s evidence regarding the frisk and recovery of
drugs from M.K. was entered into evidence by stipulation between counsel
as to the contents of the police report, known as the PARS. The PARS states,
in relevant part:
During the execution of the search warrant[,4] a male identified
as [M.K.] walked into the residence and was stopped by P/O
Brown #1926. The officer arrested this male after the officer
observed a bulge in his right hand shorts pocket.[5] The officer
patted him down and immediately recognized the bulge to be
narcotics. Recovered was a clear plastic baggie containing
sixteen (16) clear zip lock packets with green markings on one
side each containing marijuana. Also recovered from the same
pocket was $15.00 US currency.
Exhibit C-1, PARS. See N.T., 12/18/2012, at 19–20. Contrary to the
position of M.K., the Commonwealth’s evidence comprises specific,
articulable facts from which the officer could reasonably infer that M.K. was
a safety threat. While M.K. characterizes the evidence in terms of his “mere
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4
The PARS does not indicate the precise time of the execution of the search
warrant. The PARS indicates that at 7:25 p.m. the resident of the house,
who was under surveillance, exited the house, met and entered a vehicle
across the street, and police converged on the scene as a drug transaction
was occurring in the vehicle. After arrests were made of the resident, driver
and passenger of the vehicle, the search warrant for the residence was
executed, and at that time, M.K. entered the residence. See Exhibit C-1,
PARS.
5
At the suppression hearing, Officer Brown testified that he did not stop
M.K., and that it was Officer Sumpter who had “stopped” and frisked M.K.,
and made the recovery. N.T., 12/18/2012, at 11. We note that there is no
contention in this case that M.K. was placed under arrest prior to the pat-
down.
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presence” and an “innocuous bulge,” under the totality of the circumstances
analysis, innocent facts, when taken together, may warrant further
investigation.6 See Terry, 392 U.S. at 22.
Nor are we persuaded by the argument of M.K. that “the minimalist
record is devoid of even the officer’s own assertion that he believed —
whether reasonably or not — that [M.K.] was armed and dangerous.” M.K.’s
Brief at 16. In this regard, we note that this Court has instructed:
“Reasonable suspicion is based upon an objective standard, not subjective
intent.” Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009)
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6
The noticeable bulge in M.K.’s pocket distinguishes the present case from
Grahame, wherein the Pennsylvania Supreme Court determined that “the
courts below erred in concluding that Officer Russell had reasonable
suspicion to conduct a protective search of Appellant’s handbag pursuant to
Terry.” 7 A.3d at 817. The Grahame Court explained:
By her own admission, Officer Russell conducted a protective
search of Appellant’s purse based on a generalization that
firearms are commonly found in close proximity to illegal drugs.
No one from the task force knew if Appellant had a criminal
record, and there was no indication that D.W. and Appellant
were involved in a common enterprise. Indeed, the police
witnessed a single drug transaction, and it occurred outside of
Appellant’s presence. Furthermore, upon entering the house,
Officer Russell did not detect any unusual behavior or furtive
movements on Appellant’s part nor did she observe a
suspicious bulge in Appellant’s purse. Since the
Commonwealth failed to elicit any facts that supported an
objectively reasonable belief that Appellant was armed and
dangerous, the Superior Court's decision cannot be sustained.
Id. at 817 (emphasis added) (footnote and citation omitted).
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(en banc), appeal denied, 990 A.2d 727 (Pa. 2010). The Foglia Court
opined:
As the United States Supreme Court noted in Maryland v.
Macon, 472 U.S. 463, 470-471, 105 S. Ct. 2778, 86 L. Ed. 2d
370 (1985), “Whether a Fourth Amendment violation has
occurred ‘turns on an objective assessment of the officer’s
actions in light of the facts and circumstances confronting him at
the time,’ Scott v. United States, 436 U.S. 128, 136, 98 S.Ct.
1717, 1722, 56 L.Ed.2d 168 (1978), and not on the officer’s
actual state of mind at the time the challenged action was taken.
Id. at 138 and 139, n.13, 98 S.Ct. at 1724, n.13.”
Id. at 361. Therefore, M.K.’s argument regarding the absence of testimony
regarding the officer’s subjective intent is unavailing.
Furthermore, although M.K. relies on Commonwealth v. Cartagena,
63 A.3d 294 (Pa.Super. 2013), appeal denied, 70 A.3d 808 (Pa. 2013), we
find the present case is distinguishable from Cartagena. In Cartagena,
this Court held the nervousness of the driver, stopped late at night for a
suspected tinted window violation, was insufficient justification for police to
conduct a Terry frisk and a protective weapons search of the vehicle. The
Cartegena Court, in reaching its conclusion, explained:
Absent some combination of evidence to give context to
the encounter - for example, testimony that the stop occurred
in a high-crime area; testimony regarding Officer Johncola’s
training and experience and its role in formulating a reasonable
suspicion that Cartagena was armed and dangerous; and/or
testimony illuminating the length of the delay in Cartagena
lowering his windows - we cannot overturn the suppression
court’s decision to suppress the gun found during the search of
the passenger compartment of the vehicle. To do so would
require an unwarranted expansion of police officers’ ability to
conduct Terry frisks and protective vehicle searches, and a
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concomitant erosion of the rights of citizens of Pennsylvania to
be free of unreasonable search and seizure.
Cartagena, supra, 63 A.3d at 306 (footnote omitted) (emphasis added).
Here, there is a combination of evidence, namely, that M.K. walked onto the
porch of a house where suspected drug trafficking was occurring, during the
execution of a search warrant, and at that time police observed a bulge in
his pocket. Viewing these facts in the light of “the totality of the
circumstances,” we find no basis upon which to disturb the ruling of the
juvenile court that determined the protective frisk in this case was
constitutionally permissible.
M.K. next challenges the sufficiency of the evidence as to his
conviction for possession with intent to deliver a controlled substance.
In evaluating a challenge to the sufficiency of the evidence
supporting an adjudication of delinquency, our standard of
review is as follows:
When a juvenile is charged with an act that would
constitute a crime if committed by an adult, the
Commonwealth must establish the elements of the crime
by proof beyond a reasonable doubt. When considering a
challenge to the sufficiency of the evidence following an
adjudication of delinquency, we must review the entire
record and view the evidence in the light most favorable
to the Commonwealth.
In determining whether the Commonwealth presented
sufficient evidence to meet its burden of proof, the test to
be applied is whether, viewing the evidence in the light
most favorable to the Commonwealth, and drawing all
reasonable inferences therefrom, there is sufficient
evidence to find every element of the crime charged. The
Commonwealth may sustain its burden of proving every
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element of the crime beyond a reasonable doubt by
wholly circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with
a defendant’s innocence. Questions of doubt are for the
hearing judge, unless the evidence is so weak that, as a
matter of law, no probability of fact can be drawn from
the combined circumstances established by the
Commonwealth.
In re V.C., 66 A.3d 341, 348–349 (Pa. Super. 2013) (citation omitted),
appeal denied, 80 A.3d 778 (Pa. 2013).
M.K. contends that the amount of marijuana found on his person,7 “in
conjunction with other surrounding circumstances, such as the fact that he
had only fifteen dollars and no drug selling paraphernalia, only weakens the
inference that [he] intended to sell the marijuana in his pocket.” M.K.’s Brief
at 19-20. M.K. further asserts “the most significant factor undermining the
conclusion that [M.K.] intended to sell marijuana is the absence of any
expert testimony to that effect.” M.K.’s Brief at 20. Our review, however,
leads us to conclude that these arguments fail to present any basis upon
which to overturn the decision of the juvenile court.
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7
M.K. argues that the total amount of marijuana in the 16 baggies — “just
over fifteen grams” — equals half of a “small amount of marijuana,” i.e., 30
grams of marijuana, as defined by the Pennsylvania Legislature in 35 P.S. §
780-113(a)(31) (“possession of small amount of marijuana”), and
punishable by a maximum of thirty days’ imprisonment under 35 P.S. § 780-
113(g). See M.K.’s Brief at 19.
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With regard to PWID, evidence is sufficient “where the Commonwealth
proves beyond a reasonable doubt that the defendant possessed a controlled
substance he was not licensed to possess, and that he did so under
circumstances demonstrating an intent to deliver that substance.” In the
Interest of R.N., 951 A.2d 363, 367 (Pa. Super. 2008) (citations omitted).
“Factors which may be relevant in establishing PWID include the form of the
drug, the particular method of packaging, and the behavior of the
defendant.” Commonwealth v. Bricker, 882 A.2d 1008, 1015 (Pa. Super.
2005) (citation omitted). Furthermore,
[a]lthough expert testimony can be beneficial, it is by no means
necessary. Pointedly, while many cases have opined that expert
testimony is an important consideration in determining whether
a person intended to deliver a controlled substance, no case has
ever held that the absence of such testimony automatically
renders the evidence insufficient to sustain a PWID conviction.
Indeed, determining whether a person possesses a drug
for personal use or with intent to deliver is based upon
the totality of circumstances. Commonwealth v. Ratsamy,
594 Pa. 176, 934 A.2d 1233 (Pa. 2007). In Ratsamy, the
Supreme Court opined,
The amount of the controlled substance is not “crucial to
establish an inference of possession with intent to deliver,
if ... other facts are present.” Commonwealth
v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341, 350—51
(1990). The Superior Court’s own cases follow this
reasoning. See, e.g., Commonwealth v. Brown, 2006
PA Super 177, 904 A.2d 925, 931—32 (Pa.Super. 2006),
appeal denied, 591 Pa. 710, 919 A.2d 954 (2007) (the
totality of the circumstances established sufficient evidence
to support a conviction for possession with intent to
deliver); Commonwealth v. Drummond, 2001 PA
Super 122, 775 A.2d 849, 853—54 (Pa.Super. 2001),
appeal denied, 567 Pa. 756, 790 A.2d 1013 (2001) (the
Commonwealth may establish the essential elements of
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the crime wholly by circumstantial evidence; the court
looks to all facts and circumstances in each case
surrounding the possession of the controlled substance).
Id. at 1237.
Commonwealth v. Watley, supra, 81 A.3d 108, 114–115 (Pa. Super.
2013) (emphasis added), appeal denied, ___ A.3d ___ (Pa. 2014).
The juvenile court, in reaching its conclusion that M.K. had the intent
to deliver, considered (1) that the marijuana was bagged individually, (2)
that M.K. was also observed by Officer Brown and identified as a potential
target for arrest for selling narcotics during an investigation the day before
his arrest, and (3) that M.K. entered a home where drug sales were
occurring, while carrying the sixteen (16) individual bags of marijuana. Our
review leads us to conclude the record supports the court’s first and third
considerations, and we agree with the court’s determination.8
While M.K. argues the fact of “the individual bags of marijuana” carries
little weight, and “[M.K’s] presence in a drug house has little bearing,” these
arguments are again based upon the facts viewed piecemeal, rather than in
the light of the totality of the circumstances. See Watley, supra.
Furthermore, our standard of review requires us to view the evidence
presented at the hearing, and all reasonable inferences derived therefrom, in
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8
With regard to the court’s second consideration, we note the PARS
indicates that another individual — not M.K. — was the “target” of the police
investigation. See Exhibit C-1, PARS.
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the light most favorable to the verdict winner — here, the Commonwealth.
Accordingly, on this record, we conclude the evidence is sufficient to sustain
the adjudication of delinquency for PWID. See Interest of Evans, 717
A.2d 542, 546 (Pa. Super. 1998), appeal denied, 736 A.2d 604 (Pa. 1999)
(evidence that juvenile was found with nine individually wrapped rocks of
crack cocaine, totaling 1.03 grams, in an area notorious for drug activity,
and without drug paraphernalia for drug use was sufficient to sustain
adjudication of delinquency for PWID). Therefore, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2014
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